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Here at Abnormal Use, we love electronics more than a pitcher of water at a chili pepper eating contest. That being said, there is nothing we hate more than learning our brand new electronics are outdated just a few short months after we open the box. How can we be expected to cope with an iPhone 5, knowing that others are using an iPhone 5s? It’s unfathomable. Nonetheless, we would never want to stand in the way of progress. Companies shouldn’t stop developing new technology – just slow down a bit after we purchase new things. But what if companies are intentionally selling obsolete products? That’s just what has been alleged in a new lawsuit.

Top Class Actionsreports that a Wisconsin resident filed a class action against LG Electronics alleging that the company’s Blu-ray disc players were packaged with software that expired after a certain date, leaving the players unable to play discs released after the player’s purchase date. The complaint alleges that LG, Hitachi-LG Data Storage, and Cyberlink.com had a “planned obsolescence scheme,” conspiring to make the software obsolete. The Complaint states:

By bundling obsolete software with their [Blu-ray disc] players, defendants forced consumers to buy software upgrades, or to pay money or search for alternative software, and to incur installation hassle, computer damages, and other losses, in order to make reasonable use of the purchase.

This type of suit is nothing new. We previously wrote about a similar suit against Apple regarding the power button on the iPhone 4. If there really is some “conspiracy of obsolescence,” then maybe this suit has legs. Without knowing all the facts, our hunch is that this is another case of technology advancing faster than the shelf-life of electronics. Unfortunately, much software and electronic devices are “obsolete” the moment they hit the shelves. Perhaps, LG can do more in the way of post-purchase software upgrades. However, based on the pleadings, it doesn’t appear that would completely satisfy the proposed class.

Again, we understand the frustration. We also understand, however, that all products age out eventually. Unfortunately, electronics are just ahead of the curve.

We here at Abnormal Use often write about hot beverage litigation. Just last week, we reported on the tale of the hot tea and the airplane. And, of course, we are no strangers to the McDonald’s hot coffee case. Most of these hot beverage lawsuits share a common hurdle – the liquid at issue is intended to be served at temperatures the plaintiff’s later deem “unreasonably dangerous.” If a consumer demands his beverage to be served hot, he shouldn’t be able to sue the restaurant for meeting his expectations.

But what happens when the hot liquid is a cup of soup? And the consumer is an young old girl in a school cafeteria?

The hot soup was placed on the girl’s lunch tray. She began to carry her tray to another table, but someone bumped her, and the tray tipped, causing the hot soup to spill onto her left forearm and cause injuries.

Further, she alleges that the School District and its cafeteria staff were

[N]egligent in serving a substance at an unsafe temperature to an 8-year-old child, were negligent in failing to properly instruct its students on how to carry the unsafe substance, failing to properly warn its students of the unsafe substance and the dangers thereof, and failing to properly supervise its employees, agents and students at all times material to this complaint.

At this time, there is no information regarding the temperature of the soup.

As an initial matter, this case is clearly distinguishable from many of its hot beverage predecessors. First, the plaintiff is a minor and doesn’t share the same degree of culpability for assuming the risk of her food choice (if she actually had one). Second, she was required to transport the hot soup on a lunch tray through the cafeteria – a scenario that can lead to spills. As a result, this case could find itself in the hands of a jury.

Nonetheless, a bowl of soup shares one thing in common with a cup of coffee. Even in a school cafeteria, soup is expected to be served hot. If not, parents would undoubtedly be complaining at the district office. While we do not know the actual temperature of the soup served, the school district should not be found liable solely on the basis of serving “hot” soup.

As stated above, this case is unique in that it involves a minor in a school cafeteria. Obviously, the school has some duty to look out for the safety of students. But how far should that duty extend? This is not a case about a corporation allegedly sacrificing safety to protect its profit margin. School districts all across the country are in dire straits financially. Should we really require that they provide warning labels on its soup bowls? Or, will a simple verbal warning suffice?

Certainly, this case presents some novel issues for the hot beverage (or food) progeny. We will be sure to keep you posted as more information surfaces.

A Wisconsin man went hunting last fall hoping to take out Bambi’s mom but instead his thumb became the only casualty of the outing. Let’s talk specific. In November, Cyril Korte found himself deer hunting with a TenPoint Phantom crossbow he purchased at a Cabela’s Retail Store in 2009. Unfortunately for Mr. Kote, as he fired the crossbow, he stuck his thumb in the path of the bow string, which is a major no-no. In so doing, he severed part of his thumb; making matters worse, the missing piece could not be reattached. Mr. Kote has, of course, filed a lawsuit against Hunter’s Manufacturing Company (d/b/a TenPoint) and Cabela’s Retail.

I’m not particularly familiar with the operation of crossbows, but it would seem to me that keeping your digits out of the path of the bow string is common sense. I found the 2009 owners manual for the TenPoint Phantom crossbows. Sure enough, it states, quite clearly: “Never allow your fore-grip hand’s fingers or thumb to move above the barrel’s flight deck or into the bow string or cables’ release path. If you do, you will injury yourself severely when you fire your crossbow.”

Plaintiff has made a few interesting claims in his suit. First, the complaint states that TenPoint should have know of the crossbow’s dangerous propensities and that “injuries to users’ fingers or thumb are the most common injuries associated with the use of Tenpoint’s crossbows and TenPoint was at all relevant times aware of this fact.” For any product, there is always going to be a “most common” injury regardless of whether it is defectively designed. The real question is, of course, whether the foreseeable injury could have been reduced or avoided by a reasonable alternative design. To that end, Plaintiff”s real claim is that the crossbow should have some sort of grip guard to keep people from sticking their thumbs into the path of the bow string.

The second interesting allegation Plaintiff made in his lawsuit is that he relied on expertise of the Cabela’s staff in selecting the crossbow and he was apparently he was told that the TenPoint Phantom was the “best and safest” crossbow on the market. So what? Was this some sort of express warranty that Plaintiff couldn’t severe his thumb if he didn’t use the cross bow properly? The “best and safest” of anything, especially weapons, will typically still cause injuries if used improperly. What if a person goes out and buys the “best and safest” car based on the car salesman’s recommendation, then later proceeds to slam on the gas peddle with his friend standing in front of the car? Of course an injury will occur, even though the car may have, in fact, been the best and safest car on the market. The real question is here is whether other crossbows sold in 2009 had a grip guard that could have prevented the injury.

In the end, this case just seems like another classic example of “if there is a way to get injured there is someone out there who will find it.” That someone will inevitably file a lawsuit thereafter.

Thanksgiving is just around the corner, and you know what that means: James Bond movies will be playing around the clock. On at least three different channels. All weekend long. For whatever reason, in America, nothing says “Thanksgiving” like British spies, beautiful women, and exotic, tropical locales. And I’m thankful for that.

For many reasons, my favorite Bond movie is Goldfinger. It has the best theme song. It has some of the most iconic scenes in cinematic history (e.g., the golden girl, the laser, the nuclear device that Bond defuses with 0:07 seconds remaining). It has Oddjob. It has Bond’s love interest, who my puritan editor Dedman is allowing me to refer to only as “P. Galore.” And, perhaps most important for the Kentucky Colonel in me, the movie takes place in Kentucky – Kentucky! – and involves horseracing. This movie was destined for greatness.

But that’s not why Goldfinger is the best. It’s the best because of the interaction between 007 and the villain, Auric Goldfinger. Without question, some of the best dialogue in the entire Bond movie franchise happens between Bond and Goldfinger, and it’s usually Goldfinger doing the talking. Which leads me to the jumping off point for this post. One of my favorite quotes, not just in Bond but probably in life, comes from Mr. Goldfinger himself: “They have a saying in Chicago. Once is happenstance. Twice is coincidence. The third time, it’s enemy action.”

It was 4am on April 14, 2011 in Barkhamsted, Connecticut. Homeowner Storm Connors was awakened by the sound of commotion in his garage. He went to investigate. That’s when Connors found his garage consumed in flames. Inside were two vehicles. One, a brand new lithium-ion battery powered Chevy Volt; the other, a Suzuki Samurai that Connors had converted to electric power. Both vehicles were charging their batteries at the time of the fire, and both were badly damaged. There was some initial speculation that the Volt’s battery caused the fire; but this was never confirmed. There are also reports that the same Volt caught on fire again four days later, this time, while it was not charging.

One fire? That’s happenstance.

It was early June in Wisconsin. Three weeks before, the National Highway Traffic Safety Administration had conducted safety tests on a Chevy Volt; specifically putting the Volt through the “pole” test (which simulates a 20mph side-impact) and the “rotisserie” test (which simulates the vehicle in a collision-related roll). The Volt passed with flying colors, earning a five-star rating, which is the highest rating that can be awarded. Three weeks later, apparently while sitting at a federal junkyard, the Volt caught fire. After investigation, it was determined that the failure to de-energize the battery, along with some other case-specific circumstances, most likely caused the fire in question.

Two fires? Mere coincidence.

It was two weeks ago at Lake Norman, North Carolina. A Volt was charging in a homeowner’s garage when a fire broke out . . . . I think you know where this is going.

And now there are the alarmists. “Three times!,” they yell. “Clearly this is enemy action! Chevy and / or the Volt has declared war on American garages. They are terrorists and must be stopped. At the very least, we must bring legal action against them, suing in every state we can for civil conspiracy, RICO, and of course, unfair trade practices. These three occasions of unfriendly fire establish a pattern of conduct that prove an evil intent toward the American people. General Motors is a scourge upon civilization!”

Alright, let’s all take a deep breath and find a quiet moment to thank God we’re not among the ranks of the products hypochondriacs.

So far, the investigation of these matters has been inconclusive. Neither GM nor the government has been able to reproduce the circumstances of the fire that occurred in June. And let it not be forgotten that the June fire happened three weeks after crash testing took place. In terms of an imminent threat to health and safety, this isn’t one. And as for the fires in April and November, the causes have yet to be determined. Although at this point, there’s no more reason to suspect that the fires originated with the electric vehicles than with faulty wiring in the walls of the garages.

But let’s say that the alarmists are right and that lithium-ion batteries caused each of the three fires at issue. To them I say, “So what?” There are somewhere around 8000 Volts on the road right now. Three malfunctions out of 8000 cars ain’t too shabby. I’ll play those odds.

Personally, I hope this is all part of a very clever marketing strategy. Sales of electric vehicles seem underwhelming, due in no small part I’m sure to the reputation that EVs have slightly more power than a spinning hamster wheel. Most folks would probably be shocked to learn that an electric vehicle has enough power to start a small fire, let alone the power to burn their own house down! It would open up a whole new male market. Forget Corvettes and Porches. If you want power, get a Volt. The ads practically write themselves. “Volt. If you don’t squeeze every ounce of performance out of your car in between charges, your car will self-destruct because you don’t deserve to drive it; the Volt will also take your house, your golf clubs, and any other vehicles you may own because you don’t deserve them either. Most drivers need not apply.”

If it were up to me, I would run the ad during this Thanksgiving’s Bond-a-thon. And I would be thankful for my royalty check from GM.

Though we hadn’t previously known “greenwashing” was even a word, much less something around which a class-action lawsuit could be centered, we now know that at least in California, and later Wisconsin, invocation of that term may entitle the accuser to an undisclosed sum of settlement money. We previously reported here that a California resident had filed suit in federal court on behalf of purchasers of various household products manufactured by SC Johnson, alleging that the company was deceptively marketing its products as “green,” or environmentally friendly, with its use of the trademarked “Greenlist” labeling sticker on its products. Koh v. S.C. Johnson & Son, Inc., No. C-09-00927 RMW (N.D. Cal.). Another suit similarly was filed in Wisconsin.

SC Johnson recently issued a detailed press release in which its CEO announced that the company will stop using its Greenlist logo on Windex products and disclosed that the company has reached “an undisclosed settlement” agreement as to the two lawsuits filed against it. In its candid statement, the company set forth its reasons for settlement:

“We decided to settle for two reasons. First, while we believed we had a strong legal case, in retrospect we could have been more transparent about what the logo signified,” said SC Johnson Chairman and CEO Fisk Johnson. “Second, and very importantly, Greenlist™ is such a fundamentally sound and excellent process we use to green our products, that we didn’t want consumers to be confused about it due to a logo on one product.”

The statement goes on to wisely say – in words that must be echoed by many slapped with product liability suits – that “[w]hile companies always try to ensure labels are clear and understandable, different interpretations can arise.” In any event, it looks at though SC Johnson settled these suits quickly, and likely took from it a valuable lesson in marketing practices.

One consideration that practitioners need to always keep in front of them is how choice of law principles can affect what state’s law applies in an action. A recent opinion by the District of Maryland is a good example of how the application of choice of law rules can result in the application of multiple states’ laws in one action. Desrosiers v. MAG Indus. Automation Sys., LLC, No. WDQ-07-2253, 2010 WL 4116991 (D. Md. Oct. 19, 2010). This opinion does not discuss any novel choice of law rules but is relevant to show the importance of the question — “What law is going to apply?”

David Desrosiers was killed while operating a horizontal boring machine at work in Maryland. The machine was manufactured and sold by a Wisconsin company in 1953. Bridget Desrosiers sued the manufacturer as well as its holding companies as a result of David Desrosiers’ death asserting various products liability claims. She brought both a wrongful death action and a survival action.

The Maryland district court granted summary judgment for the two holding company defendants and granted in part and denied in part summary judgment for the manufacturer.

In making its determination on defendants’ motions for summary judgment, the court first applied the basic rule that “[i]n a diversity case, the choice of law rules are those of the state in which the Court sits.” Therefore, the Court looked to the choice of law rules of Maryland. “Maryland generally follows the principle of lex loci delicti, which applies the law of the place ‘where the last event required to give rise to the tort occurred.'” Further, in Maryland, wrongful death actions are governed by statute.

Therefore, on Desrosiers’ survival claims, the Court applied lex loci delicti and determined that Maryland law applied because the decedent was at his work site in Maryland at the time of the injury that resulted in his death. However, on Desrosiers’ wrongful death claims, the Court looked to Maryland statutory law that stated that “if a wrongful act occurred in another state, [the Court] shall apply the substantive law of that jurisdiction.” The Court interpreted “wrongful act” as the act that entitles another party to recovery, and since Desrosiers claimed that the machine was defectively designed, the “wrongful act” occurred in Wisconsin where it was manufactured. The Court, therefore, applied Wisconsin law on Desrosiers’ wrongful death claims.

The Court applied both Maryland law and Wisconsin law throughout its opinion. The differences between Maryland law and Wisconsin law were not outcome determinative in this matter; however, it could be in other matters. That said, we need to always determine at the outset of a matter what law applies and be ready for any differences in the application of those states’ laws.

I’ll never forget that first–and last–time I purchased a store-brand jar of salsa, thinking there was no way it was any different that the $0.30-higher-priced name-brand jar. Then with my first dip, I bit into a twig. From that point forward, I was ready to pay that extra $0.30 because I then understood that was simply the cost of the name-brand company’s employing a twig picker. I became one of those perhaps gullible consumers who believes that when you pay more for a product, you’re getting a better product. Well, such is apparently not always the case.

Last week, a federal judge in Wisconsin gave final approval to a $65 million settlement in multidistrict litigation brought by consumers who accused 10 companies of conspiring to overstate the horsepower of lawn mower engines. According to an article in The Washington Post, the case began in 2003 when an employee of one of the manufacturers walked in to a Minnesota law firm, claiming that he was privy to some interesting information. Specifically, the manufacturers were selling lawnmowers with advertised horsepower of 4.5, 5, 5.5, and 6.75, but all had the exact same engine. Suit was thereafter filed in May 2009.

According to the complaint, these companies took mowers with identical engines, put different labels on them, and sold them at significantly different prices. Perhaps even more alarming, the suit alleges that several of the companies had created a “Power Labeling Task Force,” which was used to plan and organize the conspiracy. This group allegedly met at various locations and even kept minutes that were distributed when the task force adjourned.

To date, about 340,000 claims have been made. Under the terms of the settlement, class members will receive $35 for every eligible walk-behind mower they own, and $75 for every ride-on mower. The lawnmower companies have also agreed to extend warranties by one year and to change the way they test and report horsepower.

Before you file your motion for recusal, you better be pretty sure of yourself. When you petition for a writ of mandamus to order the judge to recuse himself, well, you’d better be really sure of yourself. I’m not certain how the lawyers for Sherwin Williams are feeling right now, but, if you’re confident enough to file said motion and petition, then maybe you think a lot of yourself regardless of the circumstances. In In re Sherwin Williams Co., No. 10-1639, 2010 WL 2244119 (7th Cir. June 7, 2010) [pdf], Judge Lynn Adelman is still in the case, despite the best efforts of Sherwin Williams.

Sherwin Williams took issue with a law review article co-authored by Judge Adelman, discussing several Wisconsin cases, one of which extended risk-contribution theory to manufacturers of white lead carbonate pigment manufacturers. See Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005) [pdf]. If a plaintiff can prove that her lead poisoning injuries were caused by such pigments, then the plaintiff can recover against a manufacturer of the pigments. Though the Wisconsin decision was heavily criticized, Judge Adelman pointed out in his article that the decision was consistent with the judicial power endowed to the court by the state constitution. Sherwin Williams, of course, is not a big fan of this extension of liability. At the time that Judge Adelman authored the article, there were no pigment cases before him, but I’m sure shortly after the case was docketed, counsel for Sherwin Williams started the internal debate to decide whether to file the motion for recusal.

I think defendants ought to be aggressive. Too many times, in too many cases, defendants make the easy decision to settle, but I’m not sure that this was the case to say to the Judge, “Judge, we think you’re not capable of being impartial, and please step aside.” There seems to be a jurisdictional issue, in that Thomas is a decision by the Wisconsin Supreme Court, and Judge Adelman, sitting in diversity, would have to follow the law as set out by that court. To that end, it’s not clear what Sherman Williams hoped to gain by this move. Had the case been reassigned, the judge would still have to apply the substantive law of Wisconsin.

Second, extrajudicial writing should be encouraged, for the benefit of the law and for insight into how that judge perceives certain areas of the law. As lawyers, we should want judges to write. After all, if judges didn’t write, what would Congress use to grill judicial appointees for days on end while accomplishing relatively little unearthing of opinions heretofore unknown? Or perhaps judges might have some insight into how the system might be made better.